Injunction against the government's Malaysian 'arrangement'

[Finally – and my favourite – in relation to service of the affidavit]: What happens with the people in Melbourne? That is the principal locus of this litigation, Mr Solicitor, and the tentacles of the Commonwealth surely extend to the southern capital still, do they, or perhaps not?

The Commonwealth responded that the Minister may well have been required to satisfy himself of the requirements of s 198A(3) of the Act, but that he didn't have to take into account Malaysia's refusal to accept international human rights and refugee obligations – only what the country "does or perhaps is likely to do." It later conceded that legal obligations might be relevant, and also that the 'arrangement' with Malaysia was specifically expressed as non-binding. However, it contended that none of this prevented the Minister from reasonably making the declaration under s 198A(3), going on information provided by the UNHCR and the Department of Foreign Affairs and Trade. In any case, it said, the Government had a duty under s 198(2) to remove these 'unlawful non‑citizens' from Australia 'as soon as reasonably practicable.'

It is important to note that the deal with Malaysia came in the form of an 'arrangement' (as opposed to a treaty or even a Memorandum of Understanding, such as the Howard Government had with Nauru), which specifically states (in clause 16) that it "…represents a record of the Participants' intentions and political commitments but is not legally binding on the Participants." The inclusion of such a provision gives rise to serious questions as to whether the 'parties' truly intend to honour the rest of the arrangement.

By now we all know what happened – Justice Hayne decided that the plaintiff's arguments did pose at least one 'serious question to be tried' – ie the proper construction (interpretation) of s 198A of the Act. Having decided this, he granted the injunction against removal, and decided to refer the case to the Full Bench of the Court (this is tentatively scheduled for 2.15pm on 22 August). It was also determined that the question about removal of unaccompanied minors (of whom the Minister is the official guardian under the Act, and in whose best interests he is bound to act) should go to the Full Bench at the same time. Due to a quirky provision of the Act which was brought up at the last minute, only one adult and one minor plaintiff will be represented at that hearing (joint actions contesting decisions made under the Migration Act are prohibited).

Minister Bowen has said he's confident in the legality of the Malaysian arrangement, but this confidence will be tested on (or shortly after) 22 August. It should be an interesting day for Australian law relating to refugees.

POSTSCRIPT: Something which should be considered when discussing the future of Australia's regime of 'offshore processing' and removal of asylum seekers is the Migration Amendment (Complementary Protection) Bill 2011. This Bill is intended to make long overdue amendments to the Migration Act to implement Australia's obligations not to remove anyone to a country where he/she faces a real risk of persecution, torture or cruel, inhuman or degrading treatment or punishment. This is known as a non-refoulement obligation. This extremely important Bill is currently before Parliament, and were it to pass into law it would certainly apply to those the Government intends to send to Malaysia (or at least those who arrive after it passes). With Malaysia's record of cruel punishments and other human rights abuses, it could be yet another spanner in the works for the Malaysian arrangement.